Citation Nr: 1510743
Decision Date: 03/13/15 Archive Date: 03/24/15
DOCKET NO. 99-12 023 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Moore, Counsel
INTRODUCTION
The Veteran served on active duty from May 1978 to December 1990.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for bilateral hearing loss, left and right knee disabilities, and a left inguinal herniorrhaphy. The Veteran appealed the ratings assigned for his audiological and knee disabilities.
After the Board adjudicated the increased rating claims and referred the TDIU claim in a January 2011 decision, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 memorandum decision, the Court affirmed the Board's increased rating decision and vacated the Board's referral of TDIU, indicating that the Board had jurisdiction over the claim. The Board remanded the TDIU claim in February 2013.
FINDING OF FACT
Throughout the period on appeal, the Veteran has been employed in a full-time job and thus his service-connected disabilities are not of such severity as to preclude him from securing or following substantially gainful employment.
CONCLUSION OF LAW
The criteria for the assignment of a total disability rating based on individual unemployability are not met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.19 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002).
Nevertheless, as noted above, this case was remanded to the Agency of Original Jurisdiction (AOJ) in February 2013 for additional evidentiary development including providing the Veteran with information regarding what is required to substantiate a TDIU claim and affording him new VA examinations to evaluate his service-connected disabilities. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998).
A review of the record reflects that the AMC provided the Veteran with the required TDIU notice in a March 2013 letter. Additionally, the Veteran was afforded new VA examinations to address his service-connected disabilities in September 2013. The claim was then readjudicated in January 2015 supplemental statement of the case. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board.
A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342, 356 (2000).
Having reviewed the record, the Board finds that the Veteran is employed full-time, as of the date of VA examination in September 2013, and has been employed full-time throughout the pendency of this appeal. Various VA treatment records, VA examination reports, and statements from the Veteran attest to his fulltime employment with the Department of Corrections throughout the appeals period. He began working for the Department of Corrections in 1998. He has worked as a Disciplinary Hearings Officer since approximately 2005 and worked as a correctional officer trainer prior to that. The Veteran has at no time contended that he presently unemployed. Thus, because the undisputed facts show that the Veteran has remained employed on a full-time basis since he initiated his claim for benefits in 1998, there is no entitlement under the law to the benefit sought. His claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet App 426 (1994); see also Faust; 38 C.F.R. § 4.16.
Rather, he argues that his disabilities affect his ability to maintain the necessary Law Enforcement Certification for his current job and that he may become unemployed in the future as a result of his service-connected disabilities. The Board sympathizes with these concerns and does not doubt that his service connected disabilities result in functional impairment. If the Veteran does find himself unemployed in the future, which Board hopes not to be the case, he is of course invited to file a claim for TDIU. However, at this time, as indicated, the award of a TDIU is not warranted.
ORDER
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied.
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs